Members of The American Law Institute voted this week to approve Tentative Draft No. 6 of Restatement of the Law Third, Torts: Intentional Torts to Persons. The vote marks the completion of this project. The project is led by Reporter Kenneth W. Simons of the University of California, Irvine School of Law (UCI Law) and Associate Reporter W. Jonathan Cardi of Wake Forest University School of Law. Ellen S. Pryor of UNT Dallas College of Law served as Associate Reporter from 2014 to 2015.

This project is part of ALI’s ongoing revision of the Restatement Second of Torts. Intentional Torts to Persons is the fifth installment of the Restatement Third of Torts to be completed, following Liability for Economic Harm, Products Liability, Apportionment, and Liability for Physical and Emotional Harm. Remaining areas of tort law currently being drafted are Concluding Provisions, Defamation and Privacy, Remedies, and Property.

“This Restatement deals with a sub-category of intentional torts,” explained Reporter Kenneth Simons. “It focuses on the traditional torts of battery, assault, false imprisonment, and also a newly named tort called ‘purposeful infliction of bodily harm.’ The project also covers transferred intent and different types of consent that preclude liability. We spent quite a bit of time trying to identify the most helpful categories for courts to use when analyzing when consent does or does not exist. We also developed detailed and updated criteria for different defenses, including self-defense, defense of property, and citizen’s arrest.”

The Reporters worked closely with a diverse group of Advisers and Members Consultative Group and produced more than 20 drafts from the inception of the project in 2012.

“We paid close attention to the Second Restatement, many provisions of which were identical to the First Restatement. But the reality is that there have been significant developments in the law and the fabric of society since 1934,” added Associate Reporter Jonathan Cardi. “For example, the definition of confinement is broader in our draft, making room for confinements by the mere assertion of legal authority. Also, with a more pervasive modern police force, privileges such as the defense of property and citizen’s arrest (along with their sparse and dated case support) were beginning to look a bit long in the tooth.”

Portions of this project have been before the membership at five prior Annual Meetings. Including the Sections approved in this draft, the completed project’s overall table of contents consists of three chapters. The first chapter includes Sections on battery, assault, purposeful infliction of bodily harm, intentional (or reckless) infliction of emotional harm, false imprisonment, participation in an intentional tort, and transferred intent. A second chapter addresses consent and includes Sections on actual consent, apparent and presumed consent, emergency doctrine, consent to sexual conduct, and medical treatment without legally effective consent as battery. The final chapter deals with privileges and includes the topics of self-defense and defense of third persons; defense of the actor’s interest in possession of land and personal property; arrest and prevention or termination of crime; and privileges to discipline or control children. Additional provisions address when to compare the responsibility of negligent, reckless, and intentional plaintiffs and defendants; and fraud causing physical harm to person or property.

“For this extremely significant accomplishment, I am immensely grateful to Ken and Jonathan, as well as Ellen, for their leadership of this project,” said ALI Director Richard L. Revesz. “The Reporters worked tirelessly along with the dedicated Advisers and Members Consultative Group to get us one step closer to completing our third revision of the Torts Restatement. Since the first Restatement Volume on this area of law was published in 1934, Torts has been one of the Institute’s most influential projects, to date being cited by U.S. courts more than 88,000 times.”

With the approval of the draft, the Reporters will now prepare the Institute’s official text for publication. Until the official text is published, this and previous Tentative Drafts approved by ALI’s membership are the official position of ALI, and may be cited as such.

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About The American Law Institute

The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and improve the law. The ALI drafts, discusses, revises, and publishes Restatements of the Law, Model Codes, and Principles of Law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education.

By participating in the Institute’s work, its distinguished members have the opportunity to influence the development of the law in both existing and emerging areas, to work with other eminent lawyers, judges, and academics, to give back to a profession to which they are deeply dedicated, and to contribute to the public good.

For more information about The American Law Institute, visit www.ali.org.

 

 

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Kenneth W. Simons

Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Kenneth W. Simons is a leading scholar of tort law, criminal law, and law and philosophy. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. Professor Simons was a law clerk to U.S. Supreme Court Justice Thurgood Marshall and to Judge James L. Oakes, U.S. Court of Appeals for the Second Circuit.

W. Jonathan Cardi

Associate Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Jonathan Cardi  is a professor at Wake Forrest University School of Law. Professor Cardi specializes in tort law, the law of remedies, and the intersection of race and the law. He is co-author of a torts casebook, a remedies casebook, two commercial outlines, and is co-editor of a book entitled Critical Race Realism. He has served as President of the Southeastern Association of Law Schools and Chair of the Remedies Section of the AALS.

Jennifer Morinigo

The American Law Institute

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